CCS-36-11-00001-P Payment of Costs for Prosecution of Inmates and Certain Inmate Patients

9/7/11 N.Y. St. Reg. CCS-36-11-00001-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 36

September 07, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CCS-36-11-00001-P

Payment of Costs for Prosecution of Inmates and Certain Inmate Patients

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

This is a consensus rule making to amend Part 410 of Title 7 NYCRR.

Statutory authority:

Correction Law, sections 112 and 606; and Mental Health Law, section 29.28

Subject:

Payment of costs for prosecution of inmates and certain inmate patients.

Purpose:

To amend the rule in accordance with Mental Health Law and to update the agency name.

Text of proposed rule:

Amend the title of Part 410 as indicated below:

PART 410 PAYMENT OF COSTS FOR PROSECUTION OF INMATES AND CERTAIN INMATE-PATIENTS (Statutory authority: Correction Law, § § 112 & 606, Mental Health Law § 29.28)

Amend subdivision 410.1(a), subdivision 410.1(b), paragraph 410.1(b)(1), repeal paragraph 410.1(b)(3), and amend paragraph 410.1(c) as indicated below:

Section 410.1. Statement of purpose.

(a) The purpose of this Part is to implement the provisions of section 606 of the Correction Law, [as amended by Chapter 824 of the Laws of 1985] and section 29.28 of the Mental Hygiene Law.

(b) Section 606 of the Correction Law and section 29.28 of the Mental Hygiene Law provide[s] for the payment of costs for the prosecution of inmates.

(1) When an inmate of an institution of the department is alleged to have committed an offense while an inmate of such institution, or when an inmate-patient in the Central New York Psychiatric Center who was committed from a department institution is alleged to have committed an offense in such hospital while his or her underlying determinate or indeterminate sentence of imprisonment is still running, the State shall pay all reasonable costs for the prosecution of such offense, including but not limited to, costs for: a grand jury impaneled to hear and examine evidence of such offense, petit jurors, witnesses, the defense of any inmate financially unable to obtain counsel in accordance with the provisions of the County Law, the district attorney, the costs of the sheriff and the appointment of additional court attendants, officers or other judicial personnel.

(2) It shall be the duty of the board of supervisors of any county wherein such prosecution occurs to cause a sworn statement of all costs to be forwarded to the department. Upon certification by the department that such costs as authorized by this statute have been incurred, the department shall forward the proper vouchers to the State Comptroller. It shall be the duty of the Comptroller to examine such statement and to correct same by striking therefrom any and all items which are not authorized pursuant to the provisions of this section, and after correcting such statement, the Comptroller shall draw his warrant for the amount of any such costs in favor of the appropriate county treasurer, which sum shall be paid to said county treasurer out of any moneys appropriated therefor.

[(3) The department shall, after consultation with the Director of the Budget promulgate rules and regulations to carry out the provisions of this section.]

(c) Pursuant to the authority provided for in the Correction Law and the Mental Hygiene Law, this Part provides counties with guidelines concerning which costs associated with the prosecution and defense of a State inmate or inmate-patient are reimbursable by New York State. Provided, however, the Oneida County district attorney shall first provide written notification to the commissioner of the department of any decision to go forward with the prosecution of an inmate-patient for an offense alleged to have been committed in the Central New York Psychiatric Center within thirty days of the filing of an accusatory instrument.

Amend section 410.2 as follows:

Section 410.2. Effective date.

Expenses incurred in connection with the prosecution for an offense alleged to have been committed in a Department institution on or after September 1, 1985, or expenses incurred in connection with the prosecution for an offense alleged to have been committed in the Central New York Psychiatric Center on or after July 24, 2011 shall be governed by the provisions of this Part.

Amend subdivision 410.3(a) by creating paragraph 410.3(a)(1), and by adding a new paragraph 410.3(a)(2) as follows:

Section 410.3. Reimbursable expenses.

(a) Counties will be reimbursed for reasonable expenses which are associated with the prosecution and defense of:

(1) State inmates alleged to have committed crimes while incarcerated; or [. The following rules govern which county expenses are reimbursable by New York State.]

(2) inmate-patients alleged to have committed crimes while hospitalized in the Central New York Psychiatric Center while the underlying determinate or indeterminate sentence of imprisonment was still running, provided however, that the written notification required by section 410.1(c) of this part was first sent to the commissioner of the department by the Oneida County district attorney.

Amend section 410.6 as follows:

Section 410.6. Records for reimbursement of expenses.

Counties shall keep and maintain complete books and records concerning any and all expenses for which the county seeks reimbursement pursuant to this Part. Such books and records shall be kept available for examination by authorized personnel of the Department of Corrections and Community Supervision [al Services] and the Office of the State Comptroller at all reasonable times at the county offices for six years from the date of payment.

Text of proposed rule and any required statements and analyses may be obtained from:

Maureen E. Boll, Deputy Commissioner and Counsel, NYS Department of Corrections and Community Supervision, The Harriman State Campus - Building 2, 1220 Washington Avenue, Albany, NY 12226-2050, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Consensus Rule Making Determination

The Department of Corrections and Community Supervision has determined that no person is likely to object to the proposed action. The majority of the proposed amendments to Part 410 are being made in accordance with the amendments to Mental Hygiene Law enacted effective July 24, 2011. One amendment to section 410.6 is being proposed in order to update the agency name due to the merger with the former Division of Parole. As such, the Department has determined that these changes are necessary in order to implement or conform to non-discretionary statutory provisions, and the change to section 410.6 to be technical or non-controversial in nature. See SAPA sections 102(11)(b) and 102(11)(c).

The Department’s authority resides in section 112 of Correction Law, which authorizes the Commissioner to promulgate rules and regulations for the management and control of the Department’s Correctional facilities. See Correction Law § 112(1).

Also section 606 of Correction Law and section 29.28 of the Mental Hygiene Law authorize the Department to promulgate rules and regulations to carry out provisions for the State to pay for the prosecution of inmates and inmate-patients who are alleged to have committed an offense while in the custody of the Department. See Correction Law § § 606(1), 606(2), and 606(3), and Mental Hygiene Law § § 29.28(a), 29.28(b), and 29.28(c).

Job Impact Statement

A job impact statement is not submitted because this proposed rulemaking is revising and adding to established Departmental procedures with regard to the collection and payment of costs incurred for the prosecution of inmates and certain inmate-patients. It does not create any additional burden for Department staff, therefore, it has no adverse impact on jobs or employment opportunities.